Opinion
Rehearing Denied Feb. 19, 1975.
Page 515
Eugene Deikman, Denver, for plaintiff-appellant.
Wesley H. Doan, Richard L. Dally, Frank A. Bruno, Gerald Himelgrin, Asst. City Atty., Denver, for defendants-appellees.
SMITH, Judge.
This case arose from a confrontation between plaintiff and defendants, M. Pierson and D. Roberts, members of the Denver Police Department, on February 6, 1972. Defendants arrested plaintiff for violation of municipal ordinances prohibiting public drunkenness and use of 'filthy language.' Plaintiff alleges that defendant Roberts, in arresting and handcuffing him, wrenched his arm in such a way as to cause a permanent partial disability to his shoulder. Defendants, on the other hand, contend that Pierson did the handcuffing and that Roberts had no physical contact with plaintiff during the arrest, and generally deny any violent handling of plaintiff at any time. Plaintiff also alleges that he was assaulted at the police substation where, he asserts that, defendant Roberts threatened him with his police revolver and that defendant Pierson slapped him while he was entering a holding cell. Defendants deny these allegations. The parties agree that plaintiff did not physically resist arrest in any manner at any time prior to, during, or after his arrest. Indeed, the parties concur that the only 'resistance' was verbal, although there is a dispute as to the urbanity of the words used.
The complaint stated, in essence, two claims for relief with which we are concerned: (1) False arrest of plaintiff by defendants, and (2) assault and battery upon plaintiff by defendants. The trial court directed a verdict for defendants on the first claim and the jury returned a verdict in favor of defendants on plaintiff's claim for assault and battery and the court entered judgment thereupon. Plaintiff appeals and we reverse.
Of the numerous issues which have been asserted by plaintiff as reversible error by the trial court, we need only consider here whether the trial court erred by directing a verdict for defendants on plaintiff's claim for false arrest.
The trial court instructed the jury that the court had determined, as a matter of law, that probable cause existed for the arrest, and that, therefore, the arrest was lawful. We interpret this instruction, which established defendants' affirmative defense of legal justification for the arrest, as directing a verdict for defendants on plaintiff's claim for false arrest.
In an action for false arrest, the issue of probable cause, or legal justification to arrest, is a substantive matter of affirmative defense, which, if proven, constitutes a complete bar to plaintiff's claim for relief. Crews-Beggs Dry Goods Co. v. Bayle, 97 Colo. 568, 51 P.2d 1026; Kettelhut v. Edwards, 65 Colo. 506, 177 P. 961. As an affirmative defense, the issue here presents a mixed question of law and fact which must be resolved by the trier of facts, under appropriate instruction from the court. Schmid v. Eslick, 181 Kan. 997, 317 P.2d 459.
Where, as here, the facts establishing the grounds for arrest and the reasonableness of the arrest are controverted and the evidence conflicting, the determination of the legal effect of these facts must be hypothetically spelled out to the jury in an instruction, which directs that if they find the facts in a designated way, then such facts do or do not amount to probable cause. Aiken v. White, 93 Cal.App.2d 134, 208 P.2d 788; And see McDaniel v. People, Colo., 499 P.2d 613.
Colorado Jury Instructions 21:11 was specifically designed to accomplish this purpose. This pattern instruction correctly states the law regarding 'probable cause,' which in this case relates to the affirmative defense of a privilege to arrest without a warrant, in a civil case, as an issue of fact to be determined by the trier of facts. We therefore hold that it was reversible error for the trial court to refuse to submit this fact determination to the jury under this instruction. Sears v. Smith, 3 Colo. 287. We view this error as being inextricably intertwined with the jury's determination of the other issues in the case.
Judgment reversed and cause remanded for a new trial on all issues.
COYTE and VanCISE, JJ., concur.